Judicial Interpretation

New Draft JI on Plant Variety Protection Open for Comment

The Supreme People’s Court issued a draft of a second draft judicial interpretation on plant varieties for public comment on March 23, 2021 (最高人民法院关于审理侵害植物新品种权纠纷案件具体应用法律问题的若干规定(二)(征求意见稿)》).  The draft JI is in addition to the 2006 JI (Chinese text here).  An unofficial translation  has been prepared by the USPTO.  Comments are due by April 15 at PVP@court.gov.cn.

A prior blog on the SPC’s approach to use of molecular markers/use of guiding cases in plant variety litigation is available here.  Molecular marker appraisals of infringement, along with other methods, are discussed in the draft JI (Arts. 23, 25, 26). The draft JI also provides for a reversal of burden of production in order to prove damages, consistent with other burden shifting provisions in recent amendments to various Chinese IP laws (Art. 71 of revised patent law).

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